Communication 07 Supreme Court Opinion

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120 P.3d 217 Page 9 108 Hawai'i 318, 120 P.3d 217 (Cite as: 108 Hawai'i 318, 120 P.3d 217) dependents extracted. The third chart expressed a “resident populations” avoids the anomalous result of deviation of 10.893%. The difference in population counting nonresidents in the reapportionment plan bases between the first chart, showing a total popula-when those nonresidents, pursuant to HRS § 11-13, tion of 148,677, and the third chart, showing a total cannot register to vote. population minus nonresidents of 147,806, confirms Appellants' calculation in their opening brief that VIII. using information from the Commission's computer A. database, 871 “nonresidents ... should have been ex- In line with our holding, the Commission should cluded from the population base.” County Appellees have excluded the said nonresidents from the redis- do not raise any objection to this. tricting population base. However, Appellants do not argue that the use of the wrong population base alone VII. invalidates the Commission's plan, but, rather, that We observe further that the exclusion of identifi-the use of the wrong population base created an un- able nonresidents from the population base is consis-constitutional deviation. Even if Appellants had ar- tent with the rules for determining “residency” for gued that the plan was void for being based on the election purposes under Hawaii's state election law, wrong population, we observe that the language of Hawai‘i Revised Statutes (HRS) chapter 11. HRS Charter section 3-17(f)(4) would bring us back to the chapter 11 governs “all elections, primary, special constitutional question. Section 3-17(f)(4) states that primary, general, special general, special, or county.”“[d]istricts shall have approximately equal resident HRS § 11-3 (1993) (emphasis added). Pursuant to populations as required by applicable constitutional HRS § 11-11 (1993), the “county clerk shall be re-provisions.” (Emphases added.) Thus, assuming Ap- sponsible for voter registration in the respective pellants' calculations, infra, are correct, we address counties and the keeping of the general register and Appellants' argument in points (3) and (4) that when precinct lists within the county.” HRS § 11-13 (1993) nonresident military personnel, their dependents, and provides seven rules for determining a person's “resi-university students are excluded from the population dency” for voter registration purposes. The statute base, “deviations emerge in the [r]edistricting [p]lan references students as well as military personnel as that exceed constitutional limits.” We do not believe follows: that that is the case, however. (5) A person does not gain or lose a residence B. solely by reason of the person's presence or ab-[5][6][7] The United States Supreme Court has sencewhile employed in the service of the United held that the equal protection clause of the United States or of this State, or while a student of an in-States Constitution requires that electoral representa- stitution of learning, or while kept in an institution tion “be apportioned on a population basis.” Reynolds or asylum, or while confined in a prison; v. Sims, 377 U.S. 533, 568, 84 S.Ct. 1362, 12 L.Ed.2d FN7 506 (1964). This requirement means “that a[s]tate [must] make an honest and good faith effort to con- (6) No member of the armed forces of the United struct districts ... as nearly of equal population as is States, the member's spouse or the member's de- practicable.”Kawamoto, 75 Haw. at 470, 868 P.2d at pendent is a resident of this State solely by reason 1187 (quoting Reynolds, 377 U.S. at 577, 84 S.Ct. of being stationed in this State[.] 1362 (emphases added)). The Court recognized, however, that “[m]athematical exactness or precision **224 *325 HRS § 11-13. The Commission, by is hardly a workable constitutional requirement.” relying on “the census-counted population,” included Reynolds, 377 U.S. at 533, 84 S.Ct. 1362. See persons in the population base “solely by reason of Kawamoto, 75 Haw. at 474, 868 P.2d at 1189. Ac- the person's presence” in Hawai‘i County “while em- cordingly, it adopted a flexible, “case-by-case” ap- ployed in the service” or “while a student of an insti- proach to assessing redistricting plans, providing tution of learning[.]” This counting of students and “general considerations” as follows: military personnel and their dependents based on mere presence alone conflicted with the statutorily FN7.Reynolds is the “seminal decision in mandated process for determining who may register defining the ‘one man, one vote’ doctrine[.]” to vote among the counties. The plain reading of © 2011 Thomson Reuters. No Claim to Orig. US Gov. Works.